MAROUF et al v. AZAR et al

Filing 1

COMPLAINT against ALL DEFENDANTS ( Filing fee $ 400 receipt number 0090-5338574) filed by FATMA MAROUF, BRYN ESPLIN. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons, # 6 Summons, # 7 Summons, # 8 Summons, # 9 Summons, # 10 Summons)(Ellsworth, Jessica)

Case 1:18-cv-00378 Document 1 Filed 02/20/18 Page 1 of 26

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
________________________________________
)
FATMA MAROUF and BRYN ESPLIN, a )
married couple,
)
1060 Cotton Depot Lane #640,
)
Fort Worth, TX 76102;
)
)
Plaintiffs,
)
)
v.
)
)
ALEX AZAR, in his official capacity as
)
Secretary of the UNITED STATES
)
Civil Action No. 1:18-cv-378
DEPARTMENT OF HEALTH AND
)
HUMAN SERVICES,
)
COMPLAINT FOR
200 Independence Avenue, S.W.,
)
DECLARATORY AND
Washington, D.C. 20201;
)
INJUNCTIVE RELIEF AND
)
MONETARY DAMAGES
UNITED STATES DEPARTMENT OF
)
HEALTH AND HUMAN SERVICES,
)
200 Independence Avenue, S.W.
)
Washington, D.C. 20201;
)
)
STEVEN WAGNER, in his official
)
capacity as Acting Assistant Secretary for )
the ADMINISTRATION FOR
)
CHILDREN AND FAMILIES,
)
330 C Street, S.W.,
)
Washington, D.C. 20201;
)
)
ADMINISTRATION FOR CHILDREN
)
AND FAMILIES,
)
330 C Street, S.W.,
)
Washington, D.C. 20201;
)
)
SCOTT LLOYD, in his official capacity as )
Director of the OFFICE OF REFUGEE
)
RESETTLEMENT,
)
330 C Street, S.W.,
)
Washington, D.C. 20201;
)
)
)

Case 1:18-cv-00378 Document 1 Filed 02/20/18 Page 2 of 26

OFFICE OF REFUGEE
RESETTLEMENT,
330 C Street, S.W.,
Washington, D.C. 20201; and
UNITED STATES CONFERENCE OF
CATHOLIC BISHOPS, a non-profit
corporation,
3211 Fourth Street, N.E.,
Washington, D.C. 20017
Defendants.

)
)
)
)
)
)
)
)
)
)
)

Case 1:18-cv-00378 Document 1 Filed 02/20/18 Page 3 of 26

Introduction
1.

Plaintiffs Fatma Marouf and Bryn Esplin bring this action seeking

declaratory and injunctive relief and monetary damages against Alex Azar, in his
official capacity as Secretary of the United States Department of Health and
Human Services; United States Department of Health and Human Services; Steven
Wagner, in his official capacity as Acting Assistant Secretary for the Administration
for Children and Families; Administration for Children and Families; Scott Lloyd,
in his official capacity as Director of the Office of Refugee Resettlement; and Office
of Refugee Resettlement (together, “Federal Defendants”) for unlawful funding of
certain child welfare organizations that perform federal taxpayer-funded services
relating to unaccompanied refugee children1 in federal care and custody in a
manner that impermissibly discriminates against same-sex couples who are
prospective foster and adoptive parents. The organizations use religious doctrine
regarding same-sex relationships to exclude such couples categorically from
applying to be foster parents. By enabling federal taxpayer-funded child welfare
services, for children in federal care and custody, to be performed in reliance on
such doctrine, Federal Defendants are depriving children of the opportunity to be
placed in eligible homes that serve their best interests. Federal Defendants are also
impermissibly denying eligible foster and adoptive parent applicants, such as
Plaintiffs, the opportunity to provide loving homes to children in need on account of

Plaintiffs use the term “unaccompanied refugee children” to refer to children
served under either the Unaccompanied Refugee Minor Program or the
Unaccompanied Alien Children Program.
1

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the organizations’ religious beliefs regarding the applicants’ sexual orientation and
sex and the same-sex character of their marriage. Federal Defendants’ actions are
contrary to the best interests of children, whose welfare Federal Defendants are
charged with protecting, and violate the United States Constitution.
Jurisdiction and Venue
2.

This case arises under the Constitution of the United States, and

presents federal questions within this Court’s jurisdiction pursuant to 28 U.S.C.
§ 1331.
3.

This Court has jurisdiction to grant the requested declaratory and

injunctive relief under 28 U.S.C. §§ 2201 and 2202, Federal Rules of Civil Procedure
57 and 65, and the inherent equitable powers of the Court.
4.

Venue is proper in this District because:


pursuant to 28 U.S.C. § 1391(b)(1), Defendant United States
Conference of Catholic Bishops is an entity incorporated under the
laws of the District of Columbia with its principal place of business
in the District of Columbia, and the remaining Defendants are
officers or employees of an agency of the United States in their
official capacities or agencies of the United States; and



pursuant

to

28

U.S.C.

§ 1391(b)(2),

Defendants

conduct

a

continuous and systematic portion of their business in this District,
where a substantial part of the events giving rise to the claims,

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including the unlawful administration of federal funds by Federal
Defendants, occurred.
Parties
5.

Plaintiffs Fatma Marouf (“Fatma”) and Bryn Esplin (“Bryn”),

both women, are a married lesbian couple. Plaintiffs are residents of Fort Worth,
Texas,

and

federal

taxpayers.

Their

taxpayer

dollars

contribute

to

the

administration of federal child welfare programs, including those at issue in this
action. In accordance with the United States Constitution, Plaintiffs object to
paying for federally funded child welfare services that are provided in a
discriminatory manner, based on religious principles to which they do not subscribe,
that fail to serve the best interests of children.
6.

Plaintiffs suffered the additional harms alleged in this Complaint

when organizations receiving federal funds denied them the opportunity to be foster
parents on the basis of the organizations’ religious beliefs regarding their sexual
orientation and sex and the same-sex character of their marriage. Federal
Defendants enabled such discrimination against Plaintiffs.
7.

Plaintiffs bring suit against Defendant Alex Azar in his official

capacity as Secretary of the United States Department of Health and Human
Services. In that capacity, Defendant Azar oversees the United States Department
of Health and Human Services.
8.

Plaintiffs bring suit against Defendant United States Department

of Health and Human Services (“HHS”), which is headquartered in the District

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of Columbia, and is charged with enhancing and protecting Americans’ health and
well-being via the provision of health and human services. HHS is the federal
agency that is responsible for overseeing the Office of Refugee Resettlement’s
functions and responsibilities involving the care and custody of children under the
Unaccompanied Refugee Minor (“URM”) Program and the Unaccompanied Alien
Children (“UC”) Program.
9.

Plaintiffs bring suit against Defendant Steven Wagner in his official

capacity as Acting Assistant Secretary for the Administration for Children and
Families. In that capacity, Defendant Wagner oversees the Administration for
Children and Families.
10.

Plaintiffs

bring

suit

against

Defendant

Administration

for

Children and Families (“ACF”), which is headquartered in the District of
Columbia, and is the division of HHS that is responsible for implementing certain
human services programs, including those focused on fostering the economic and
social welfare of youth and families, such as the URM Program and the UC
Program administered by ORR.
11.

Plaintiffs bring suit against Defendant Scott Lloyd in his official

capacity as Director of the Office of Refugee Resettlement. In that capacity,
Defendant Wagner oversees the Office of Refugee Resettlement.
12.

Plaintiffs bring suit against

Defendant

Office

of

Refugee

Resettlement (“ORR”), which is headquartered in the District of Columbia, and is

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the office within ACF that is responsible for the care and custody of children in the
UC Program and the URM Program.
13.

Plaintiffs bring suit against Defendant United States Conference

of Catholic Bishops (“USCCB”), a non-profit organization incorporated in the
District of Columbia with its headquarters and principal place of business located in
the District of Columbia. USCCB has a legal and financial interest relating to the
subject of this action. Disposing of this action in USCCB’s absence would
necessarily impair the interests it has by virtue of its grants, cooperative
agreements, and funding from HHS. Because USCCB is subject to service and its
participation will not deprive this Court of subject matter jurisdiction, its joinder
pursuant to Federal Rule of Civil Procedure 19(a)(1) is required to permit this Court
to accord complete relief among the parties, without exposing Federal Defendants to
the risk of inconsistent obligations.
Factual Allegations
The Unaccompanied Refugee Minor Program and the Unaccompanied Alien
Children Program
14.

The

federal

government

currently

cares

for

thousands

of

unaccompanied refugee children, many of whom are fleeing violence.
15.

Federal Defendants administer the URM Program, which provides for

the care of children who are under the age of 18, unaccompanied by an adult, and
any of the following: refugees, entrants, asylees, victims of trafficking, certain
minors with special immigrant juvenile status, or U visa holders.

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16.

Federal Defendants also administer the UC Program, which provides

for the care of children who arrive in the United States unaccompanied by a parent
or legal guardian, and who lack lawful immigration status in the United States.
When such children are apprehended by the United States Department of
Homeland Security, they are assigned to the care and custody of ORR.
17.

ORR’s responsibilities under both programs include awarding and

administering

grants

to

and

cooperative

agreements

with

child

welfare

organizations, which can include religiously affiliated organizations, to perform
child welfare services on ORR’s behalf, and ensuring that such organizations abide
by applicable federal laws in providing such federally funded services.
18.

Through grants to and cooperative agreements with child welfare

organizations, ORR provides services to the children in its custody, including but
not limited to shelter, foster care and residential placement, and adoption services.
ORR is charged with guaranteeing that the best interests of the children are
paramount in implementing its child welfare programs. The child welfare
organizations to which ORR awards grants and cooperative agreements are charged
with, among other things, matching children in their care with qualified families in
accordance with ORR’s standards of care.
19.

Religiously affiliated organizations are among the providers of

federally funded care for children under the URM Program and the UC Program.
Although the organizations that receive federal grants and cooperative agreements
under these programs may be faith-based organizations, they may not use federal

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funds to proselytize or for other sectarian purposes, such as restricting access to
federally funded child welfare services based on faith-based principles.
20.

ORR has an obligation to ensure that the organizations that receive

grants or cooperative agreements to provide federal child welfare services relating
to unaccompanied refugee children in its custody do so without discriminating
against foster or adoptive parent applicants based on their sexual orientation, their
sex, the same-sex character of their marriage, or the religious beliefs of the
organizations.
21.

There are more children in the care of Federal Defendants under the

URM Program and the UC Program than there are eligible foster or adoptive homes
seeking placement or adoption of such children.
22.

There is no valid basis for the government to prefer different-sex

couples over same-sex couples when considering or approving would-be foster or
adoptive parents or making placement or adoption decisions. The scientific
community has reached consensus that children reared by lesbian or gay parents
are just as likely to be well-adjusted as children of heterosexual parents. This
consensus has been recognized by every major professional organization dedicated
to children’s health and welfare, including: the American Academy of Pediatrics,
the American Psychological Association, the American Medical Association, the
National Association of Social Workers, and the Child Welfare League of America.
There is no basis in social science or child welfare principles for categorically
barring same-sex spouses from being foster or adoptive parents.

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23.

When Federal Defendants enable organizations to turn away qualified

foster or adoptive parent applicants based on criteria unrelated to child welfare,
such as the applicants’ sexual orientation or sex or the same-sex character of their
marriage, or the religious beliefs of the organizations, the number of potential
homes for children is reduced.
24.

Such exclusions that reduce the number of placement or adoption

options for children can also result in placing children with less suitable parents
who are unable to meet the children’s individualized needs, causing harm to
children in ORR’s custody and care.
United States Conference of Catholic Bishops
25.

USCCB, a grantee of ORR, is one of the primary organizations that

implements the URM Program and the UC Program on behalf of Federal
Defendants.

USCCB,

through

its

affiliates

and

sub-grantees,

determines

appropriate placements for children under the URM Program and the UC Program,
among other responsibilities.
26.

USCCB receives millions of dollars in grants from ORR annually under

the URM Program and the UC Program. ORR authorizes USCCB to use those funds
to award sub-grants to other organizations, including its sub-grantee, Catholic
Charities of Fort Worth (“CCFW”), to perform services for children in the Fort
Worth region of Texas under the URM Program and the UC Program.
27.

USCCB is the sole or primary source of funding for CCFW’s services

for children under the URM Program and the UC Program.

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28.

In its URM grant application for the relevant period, USCCB informed

ORR that “USCCB must ensure that services provided under this application are
not contrary to the authentic teaching of the Catholic Church, its moral convictions,
or religious beliefs.”
29.

In its UC grant application for the relevant period, USCCB similarly

informed ORR that “USCCB must ensure that services provided under this
application are not contrary to the authentic teaching of the Catholic Church, its
moral convictions, and religious beliefs in an approach that is consistent with the
ACF Policy on Grants to Faith-Based Organizations.”
30.

USCCB also notified ORR in its UC grant application that it would

require sub-grantees to comply with an agreement provision entitled “Catholic
Identity,” under which sub-grantees:
must ensure that services provided to those served under this
Agreement are not contrary to the authentic teaching of the Catholic
Church, its moral convictions, and religious beliefs. Accordingly,
[USCCB] expects that the Sub-recipient will provide services under
this Agreement within certain parameters including, among other
things, that the Sub-recipient will not provide, refer, encourage, or in
any way facilitate access to contraceptives or abortion services.
31.

When ORR awarded the URM and UC grants to USCCB for the

relevant period, it did not prohibit USCCB from administering the grants based on
religious considerations, as set forth in USCCB’s grant applications. Nor did ORR
implement any other safeguards to prevent USCCB from doing so.
32.

USCCB’s URM and UC grant applications for prior periods contained

similar statements of intent with respect to religiously motivated administration of

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the grants, and ORR similarly did not implement any safeguards to prevent USCCB
from carrying out such intent. On information and belief, if unchecked, this pattern
will persist.
33.

In numerous contexts, USCCB has publicly objected to providing

services to married applicants unless they are in a legal union of one man and one
woman. USCCB’s website openly advocates against parenting of children by samesex couples. For example, USCCB Fact Sheets concerning adoption and foster care
services, which have appeared on USCCB’s website since at least 2013, state that,
“[w]hen placing children with couples, Catholic Charities ensures those children
enjoy the advantage of having a mother and a father who are married.”
Discrimination

Against

Catholic

Adoption

Services,

USCCB

http://www.usccb.org/issues-and-action/religious-liberty/discrimination-againstcatholic-adoption-services.cfm (last visited Feb. 16, 2018).
34.

Another section on USCCB’s website entitled “Frequently Asked

Questions About the Defense of Marriage” states, and stated at all times during the
relevant period, that “[p]lacing a child in the care of two men or two women may be
well-intentioned, but ultimately deprives the child of that which best serves his or
her interests – a mother and a father.”

Frequently Asked Questions About the

Defense of Marriage, USCCB, http://www.usccb.org/issues-and-action/marriage-andfamily/marriage/promotion-and-defense-of-marriage/frequently-asked-questions-ondefense-of-marriage.cfm (last visited Feb. 16, 2018).

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35.

Additionally, as confirmed by a press release first posted on its website

in 2015, USCCB has lobbied for the passage of laws that would allow child welfare
organizations that receive federal funds for adoption and foster care services to
declare overtly, without fear of adverse governmental action, that, based on their
religious beliefs, they permit adoption by, and foster care placement with, only
married couples comprising one man and one woman.
36.

When ORR awarded the URM and UC grants to USCCB for the

relevant period, it was on notice that USCCB’s religious beliefs disfavored same-sex
relationships.
37.

Federal Defendants unlawfully use federal taxpayer dollars to finance

grants to USCCB to implement the URM Program and the UC Program based on
impermissible religious criteria.
38.

Federal Defendants are required to administer grants and cooperative

agreements in a manner so as to ensure that federal funding is expended, and
associated federal programs are implemented, in accordance with the constitutional
guarantees of equality and liberty and the strictures of the Establishment Clause,
in addition to applicable statutory and regulatory requirements, including but not
limited to those prohibiting discrimination.
39.

HHS requires that no person otherwise eligible be excluded from

participation in, denied the benefits of, or subjected to discrimination in the
administration of HHS programs and services based on non-merit-based factors
such as sexual orientation, sex, and religion. See 45 C.F.R. § 75.300(c) (2018). HHS

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grantees and sub-grantees, including USCCB and its sub-grantees, must comply
with this requirement in the administration of programs supported by HHS awards.
40.

HHS also requires that, in accordance with the Supreme Court

decisions in United States v. Windsor and Obergefell v. Hodges, HHS grantees and
sub-grantees, including USCCB and its sub-grantees, must treat as valid the
marriages of same-sex couples in the administration of programs supported by HHS
awards. See 45 C.F.R. § 75.300(d) (2018).
Fatma and Bryn Seek to Foster an Unaccompanied Refugee Child
41.

Fatma and Bryn married in 2015 and moved to Texas in 2016. Fatma

is a 41-year-old law professor at Texas A&M University Law School and director of
its Immigrant Rights Clinic. She was born in California to Egyptian and Turkish
immigrant parents. Bryn, age 33, teaches Bioethics at Texas A&M University’s
School of Medicine. Bryn was born in St. George, Utah and grew up there and later
in Las Vegas, Nevada.

The couple’s wedding ceremony joyfully wove together

customs from their diverse backgrounds and cultures—Fatma being raised Muslim
and Bryn, Mormon.
42.

The couple was eager to bring a child into their family. After their

wedding, Fatma attempted to get pregnant though reproductive technology. Their
attempts were unsuccessful, and the couple began considering other options for
bringing a child into their lives.
43.

Fatma became familiar with CCFW through her work at the

immigration clinic. The chief executive officer of CCFW sent Fatma a personal

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solicitation via e-mail, proposing a stronger relationship between CCFW and
Fatma’s clinic. To advance that goal, CCFW invited Fatma to tour CCFW’s facility,
writing that “[i]t would be an honor to host you!” Fatma went on the tour where she
learned about CCFW’s work with unaccompanied refugee children.
44.

Fatma’s visit sparked her and Bryn’s shared interest in fostering an

unaccompanied refugee child. The couple sought more information from CCFW
about their foster care programs and exchanged multiple e-mails with a CCFW
employee about the next steps for bringing an unaccompanied refugee child into
their home. In those e-mails, Bryn was identified as Fatma’s spouse. The couple was
thrilled when CCFW scheduled an initial telephone interview for them with the
Chair of the Executive Committee of CCFW’s Board of Directors, Donna Springer
(“Springer”).
45.

On or about February 22, 2017, Fatma and Bryn spoke with Springer.

Springer described various requirements to become foster parents, as well as the
population of children in need of foster homes. During the call, it became clear to
CCFW that Fatma and Bryn are same-sex spouses.
46.

Springer then told Fatma and Bryn that foster parents must “mirror

the holy family.” To clarify whether their relationship would be an issue, Fatma
explicitly stated that she and Bryn are a same-sex couple. Springer responded that
they did not “qualify” to foster a child.
47.

Shocked by Springer’s response, Fatma then asked about lesbian, gay,

bisexual, and transgender (“LGBT”) children in CCFW’s care, because LGBT youth

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may qualify for asylum. Springer responded that none of the approximately 700
children that CCFW serves is a member of the LGBT community.
48.

On or about that same day, February 22, 2017, the Director of

Immigration Services for CCFW recognized Fatma’s expertise related to CCFW’s
immigration work by sending Fatma and two of her colleagues an e-mail inviting
them to deliver a “Know Your Rights Presentation” at CCFW on March 4, 2017.
Fatma accepted the invitation and gave the presentation. Hundreds of people
attended, and the director wrote to Fatma afterward to thank her for the
presentation.
49.

On or about February 22, 2017, Fatma e-mailed the general e-mail

address for ORR to report that CCFW had discriminated against her and her samesex spouse by informing them that they were not eligible to foster an
unaccompanied refugee child because they did not “mirror the holy family.” Fatma’s
e-mail asked whether such conduct was permissible and sought information about
alternative organizations that would allow same-sex couples to become foster
parents. Fatma did not receive a response to her e-mail until April 14, 2017, when
the “ORR team” e-mailed Fatma asking for the names of the individuals at CCFW
who “informed [her] that the agency does not license foster families who do not
mirror the holy family”.
50.

Fatma provided the information that ORR requested on May 1, 2017.

She received a response on May 2, 2017, which only thanked her for providing the

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information. She has since received no further communication from either ORR or
CCFW.
51.

By working to ensure that none of the children for which they are

responsible are placed in homes of same-sex spouses based on USCCB’s religious
beliefs, USCCB and its sub-grantees not only discriminate against same-sex
spouses, but also effectively erase the non-Catholic identities and beliefs of many of
the unaccompanied refugee children for which they are responsible. This conduct
potentially increases those children’s alienation and vulnerability, while denying
them access to loving homes that could serve them best—all at federal taxpayers’
expense.
52.

By working to ensure that none of the children for which they are

responsible be placed in homes of same-sex spouses based on USCCB’s religious
beliefs, USCCB and its sub-grantees also disserve and demean the youth for which
they are responsible who are LGBT, stigmatizing them as less deserving and
worthy of respect than others, and sending them the message that, when they grow
up to form families of their own, they and their families will not have a right to
equal treatment in the provision of government services.
53.

Federal Defendants were on notice at the time that they awarded the

URM and UC program grants for the relevant period to USCCB that USCCB and
its sub-grantees, including CCFW, would administer the grants in a discriminatory
manner based on its religious beliefs, including its religious beliefs disfavoring
same-sex relationships. Yet Federal Defendants did not implement any safeguards

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to prevent USCCB or its sub-grantees, including CCFW, from doing so. As a result,
Federal Defendants violated the United States Constitution.
54.

Federal Defendants’ failure to remedy the discrimination by USCCB

and its sub-grantee in denying Fatma and Bryn the opportunity to foster a child
under the URM Program or the UC Program based on impermissible religious
considerations, of which they are on notice, compounds their constitutional
violation.
CLAIMS FOR RELIEF
Count I
(First Amendment – Establishment Clause)
U.S. Const. amend I
55.

Plaintiffs reincorporate the foregoing allegations as if fully set forth

herein.
56.

Federal Defendants have provided and continue to provide federal

taxpayer funds to USCCB and its sub-grantees to provide federal child welfare
services for unaccompanied refugee children in the Fort Worth region of Texas
under both the URM Program and the UC Program.
57.

USCCB and its sub-grantees apply its own religious criteria in

providing these federally funded services when accepting applications from
prospective foster and adoptive parents, including religious requirements that
discriminate against prospective foster and adoptive parents on account of their
sexual orientation and sex and the same-sex character of their marriage.

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58.

Federal Defendants were on notice at the time that they awarded the

URM and UC grants for the relevant period to USCCB that USCCB and its subgrantees, including CCFW, would administer the grants in a discriminatory manner
based on its religious beliefs, including its religious beliefs disfavoring same-sex
relationships.
59.

Federal Defendants failed to implement any safeguards to prevent

USCCB or its sub-grantees, including CCFW, from administering the URM and UC
grants in a discriminatory manner based on its religious beliefs.
60.

USCCB and its sub-grantee used federal funds provided by Federal

Defendants to discriminate against Fatma and Bryn based on USCCB’s religious
beliefs.
61.

Federal Defendants failed to take any corrective action after Fatma

and Bryn notified them that USCCB and its sub-grantee had engaged in sectarian
discrimination against Fatma and Bryn under federal programs administered by
Federal Defendants.
62.

Federal Defendants have violated and continue to violate the

Establishment Clause by enabling, sanctioning, ratifying, and failing to implement
adequate safeguards against USCCB’s and its sub-grantees’ use of federal taxpayer
funds for its own sectarian purposes, including categorically excluding certain
members of the public from funded child welfare services based on faith-based
principles.

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63.

By enabling grantees and sub-grantees to exclude members of the

public from federal child welfare services based solely on their religious beliefs,
Federal Defendants have disbursed and continue to disburse federal taxpayer funds
in a manner that is not neutral with respect to religion.
64.

By enabling grantees and sub-grantees to provide federal child welfare

services based on their religious beliefs, Federal Defendants have disbursed and
continue to disburse federal taxpayer funds in a manner that prefers USCCB’s
Catholic identity and beliefs.
65.

By funding USCCB with knowledge that it will use such funds to

engage in sectarian discrimination based on its religious beliefs, and by failing to
establish adequate safeguards to prevent such discrimination, Federal Defendants
have improperly acted with a religious purpose and with a primary effect of
advancing USCCB’s Catholic identity and beliefs.
66.

By funding USCCB with knowledge that it will use such funds to

engage in sectarian discrimination based on its religious beliefs, and by failing to
establish adequate safeguards to prevent such discrimination, Federal Defendants
have improperly defined recipients of such funds by reference to religion and
impermissibly effected governmental indoctrination.
67.

By funding USCCB with knowledge that it will use such funds to

engage in sectarian discrimination based on its religious beliefs, and by failing to
establish adequate safeguards to prevent such discrimination, Federal Defendants
have improperly endorsed USCCB’s Catholic identity and beliefs.

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68.

By enabling USCCB’s religious beliefs to be a precondition to receiving

government services, Federal Defendants have impermissibly coerced individuals,
including vulnerable and impressionable children in the care of USCCB and CCFW,
with respect to those religious beliefs.
69.

As federal taxpayers, Plaintiffs are harmed by Federal Defendants’ use

of federal taxpayer funds to underwrite and endorse religious beliefs to which they
do not subscribe.
70.

Federal Defendants’ actions also harm LGBT individuals and couples

who wish to become foster or adoptive parents, including Plaintiffs.
71.

Through the actions described above, Federal Defendants have

deprived and continue to deprive Plaintiffs of their rights protected by the
Establishment Clause of the First Amendment to the United States Constitution.
Count II
(Fifth Amendment – Equal Protection)
U.S. Const. amend V
72.

Plaintiffs reincorporate the foregoing allegations as if fully set forth

herein.
73.

The Due Process Clause of the Fifth Amendment to the United States

Constitution prohibits the federal government from denying equal protection of the
laws.
74.

Federal Defendants have discriminated and continue to discriminate

impermissibly against individuals, including Plaintiffs, based on religion, their
sexual orientation, their sex, and the same-sex character of their marriage, by

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Case 1:18-cv-00378 Document 1 Filed 02/20/18 Page 22 of 26

funding the administration of services that they are on notice are being
administered in a manner that disfavors same-sex relationships.
75.

Federal Defendants have deprived and continue to deprive individuals,

including Plaintiffs, of equal dignity, liberty, and autonomy, and brand them as
inferior by discriminating against them based on religion, sexual orientation, sex,
and the exercise of the fundamental right to marry.
76.

Discrimination based on religion, sexual orientation, sex, or the

exercise of the fundamental right to marry (including to a person of the same sex) is
presumptively unconstitutional and subject to heightened scrutiny.
77.

There is no constitutionally adequate justification for Federal

Defendants’ actions.
78.

Federal

Defendants’

actions

fail

to

advance

any

legitimate

governmental interest. To the contrary, enabling the religious test at issue is
antithetical to Federal Defendants’ responsibility to ensure that the best interests of
the children in their care and custody drive their placement and adoption.
79.

Federal Defendants’ actions harm LGBT individuals and couples who

wish to become foster or adoptive parents, including Plaintiffs.
80.

Through the actions described above, Federal Defendants have

deprived and continue to deprive Plaintiffs of their rights protected by the equal
protection guarantee of the Fifth Amendment to the United States Constitution.

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Count III
(Fifth Amendment – Substantive Due Process)
U.S. Const. amend V
81.

Plaintiffs reincorporate the foregoing allegations as if fully set forth

herein.
82.

The Fifth Amendment's Due Process Clause protects individuals'

substantive rights to be free to make certain decisions central to autonomy,
integrity,

self-definition,

intimacy,

and

personhood

without

unjustified

governmental intrusion. These decisions include the fundamental right to marry,
including the right to marry someone of the same sex.
83.

Married persons also have a fundamental liberty interest in their

marriage, including a fundamental liberty interest in the federal government
recognizing and respecting marriages validly entered into under state law.
84.

Additionally, all persons have a liberty interest in their family privacy,

integrity, and association.
85.

Federal Defendants enabled, sanctioned, and ratified USCCB’s and its

sub-grantees’ use of a religious test to deny Fatma and Bryn the ability to apply to
be foster or adoptive parents under the URM Program or UC Program solely due to
a judgment that their family “does not mirror the holy family.” In doing so, Federal
Defendants’ conduct violated the substantive due process component of the Due
Process Clause of the Fifth Amendment because Federal Defendants burdened
Fatma and Bryn’s liberty interests and penalized their exercise of their
fundamental right to marry.

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86.

There is no constitutionally adequate justification for Federal

Defendants’ infringement of Plaintiffs’ fundamental rights.
87.

Federal Defendants’ actions harm LGBT individuals and couples who

wish to become foster or adoptive parents, including Plaintiffs.
88.

Through the actions described above, Federal Defendants have

violated and continue to violate the substantive due process protections of the Fifth
Amendment to the United States Constitution.
PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully pray that this Court grant the
following relief:
A.

Enter a declaratory judgment that Federal Defendants’ failure to

ensure that Plaintiffs may apply to be foster or adoptive parents to a child under
the URM Program or the UC Program through Federal Defendants’ grantee
USCCB absent religious or other criteria that disfavor them based on their sexual
orientation or sex or the same-sex character of their marriage violates the First and
Fifth Amendments to the United States Constitution.
B.

Enter a declaratory judgment that Federal Defendants’ actions in

enabling, sanctioning, ratifying, or failing to implement adequate safeguards
against the use of religious or other criteria disfavoring same-sex relationships to
determine who may receive federal child welfare services under the URM Program
and the UC Program violates the First and Fifth Amendments to the United States
Constitution.

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C.

Issue a permanent injunction requiring Federal Defendants to ensure

that Plaintiffs may apply to be foster or adoptive parents to a child under the URM
Program or the UC Program through Federal Defendants’ grantee USCCB absent
religious or other criteria that disfavor them based on their sexual orientation or
sex or the same-sex character of their marriage.
D.

Issue a permanent injunction prohibiting Federal Defendants from

enabling, sanctioning, ratifying, or failing to implement adequate safeguards
against the use of religious or other criteria to exclude foster or adoptive parent
applicants based on their sexual orientation or sex or the same-sex character of
their marriage in the administration of the URM Program and the UC Program,
including, as necessary, prohibiting Federal Defendants from awarding URM or UC
grants to USCCB.
E.

Award Plaintiffs nominal monetary damages.

F.

Award Plaintiffs their reasonable costs and attorney’s fees.

G.

Grant any other and further relief that this Court may deem fit and

proper.
Dated: February 20, 2018
Respectfully submitted,
HOGAN LOVELLS US LLP
By: /s/ Jessica L. Ellsworth
Jessica L. Ellsworth (DC Bar No. #484170)
*Kenneth Y. Choe
**Jennifer A. Fleury

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*James A. Huang
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004–1109
Telephone: [phone]
Facsimile: [phone]
[e-mail]
[e-mail]
[e-mail]
*Alali Dagogo-Jack
HOGAN LOVELLS US LLP
4085 Campbell Avenue, Suite 100
Menlo Park, CA 94025
Telephone: [phone]
[e-mail]
and
*Camilla B. Taylor
*Jamie A. Gliksberg
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
105 West Adams, 26th Floor
Chicago, IL 60603-6208
Telephone: [phone]
[e-mail]
[e-mail]
*Kenneth D. Upton, Jr.
LAMBDA LEGAL DEFENSE AND
EDUCATION FUND, INC.
3500 Oak Lawn Avenue, Suite 500
Dallas, TX 75219-6722
Telephone: [phone]
[e-mail]
Attorneys for Plaintiffs
*admission pro hac vice to be sought
**admission to the bar of the Court pending

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